State v. Freeman ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-654
No. COA22-218
Filed 4 October 2022
Wake County, Nos. 17CRS1875, 21CRS203531
STATE OF NORTH CAROLINA
v.
ALJARIEK FREEMAN, Defendant.
Appeal by defendant from judgment entered 30 September 2021 by Judge
Keith O. Gregory in Wake County Superior Court. Heard in the Court of Appeals 23
August 2022.
Attorney General Joshua H. Stein, by Assistant Attorney General Joseph R.
Shuford, for the State-appellee.
Dysart Willis, by Andrew Nelson, for defendant-appellant.
GORE, Judge.
¶1 Defendant petitions for writ of certiorari claiming the trial court erred during
sentencing by not finding two mitigating factors supported by uncontradicted and
credible evidence to mitigate his sentence on one count of robbery with a dangerous
weapon and one count of conspiracy to commit robbery with a dangerous weapon.
Defendant is limited to petitioning for writ of certiorari since he has no right of appeal
under Section 15A-1444 of the North Carolina General Statutes. For the following
reasons, we deny defendant’s petition for writ of certiorari and dismiss the appeal.
STATE V. FREEMAN
2022-NCCOA-654
Opinion of the Court
I.
¶2 Defendant was involved in a robbery on 10 December 2016. During the
robbery, one of defendant’s co-conspirators shot a drug dealer in the back of the head,
killing him. Defendant pled guilty to two offenses: (1) robbery with a dangerous
weapon, and (2) conspiracy to commit robbery with a dangerous weapon. Defendant
agreed to testify for the State against his co-conspirator and cooperated accordingly.
On 28 January 2021, defendant was charged with two counts of trafficking heroin
and pled guilty to both on 8 July 2021.
¶3 Defendant was set for sentencing on all four offenses on 9 September 2021, but
he failed to appear. Defendant’s prior record was a level III due to prior convictions
in multiple counties during 2014, 2016, and 2017. On 30 September 2021, at the
rescheduled sentencing hearing, the State agreed defendant cooperated by testifying
against his co-conspirator at the co-conspirator’s first-degree murder trial. Defendant
requested the trial court mitigate his sentence based upon his cooperation with the
State. The trial court considered the evidence of mitigating factors and chose to
sentence defendant within the presumptive range for the two robbery convictions.
The State and defendant stipulated that defendant agreed to provide substantial
assistance to the Raleigh Police Department after pleading guilty to the trafficking
charges. The trial court took this substantial assistance into account and issued a
reduced sentence for defendant of 41 to 59 months rather than 70 to 93 months.
STATE V. FREEMAN
2022-NCCOA-654
Opinion of the Court
Because defendant pled guilty to all his charged offenses, he has no right to appeal
unless his petition for writ of certiorari is granted. Defendant orally appealed in open
court.
II.
¶4 Defendant claims he has a meritorious issue that deserves this Court’s
consideration such that we should grant his petition for writ of certiorari. We
disagree.
¶5 Under Section 15A-1444, a defendant who enters a guilty plea is only entitled
to appeal of right when the minimum sentence handed down does not fall within the
presumptive range based upon defendant’s prior record and offense class. N.C. Gen.
Stat. § 15A-1444(a1) (2021). Otherwise, the defendant has no right of appeal and is
limited to petition for review via writ of certiorari for any sentencing issue. Id. “A
petition for the writ must show merit or that error was probably committed below. . .
. Certiorari is a discretionary writ, to be issued only for good and sufficient cause
shown.” State v. Grundler, 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959). “A trial court’s
weighing of mitigating and aggravating factors will not be disturbed on appeal absent
a showing that there was an abuse of discretion.” State v. Rogers, 157 N.C. App. 127,
129, 577 S.E.2d 666, 668 (2003).
¶6 In claiming a meritorious issue for appeal, defendant cites to State v. Jones, for
the proposition that a sentencing judge errs “if he fails to find a statutory factor when
STATE V. FREEMAN
2022-NCCOA-654
Opinion of the Court
evidence of its existence is both uncontradicted and manifestly credible.” 309 N.C.
214, 220, 306 S.E.2d 451, 456 (1983). However, this statement made by our Supreme
Court was to give effect to the Fair Sentencing Act, which has since been repealed.
See N.C. Gen. Stat. § 15A-1340.1 to 15A-1340.7, repealed by Structured Sentencing
Act, ch. 538, sec. 14, 1993 N.C. Sess. Laws 2298, 2318. The Structured Sentencing
Act replaced the Fair Sentencing Act and under the Structured Sentencing Act, “[t]he
court shall make findings of the aggravating and mitigating factors present in the
offense only if, in its discretion, it departs from the presumptive range of sentences .
. . .” N.C. Gen. Stat. § 15A-1340.16(c) (2021). This is the case “even if the evidence of
mitigating factors is uncontroverted.” State v. Garnett, 209 N.C. App. 537, 550, 706
S.E.2d 280, 288 (2011); see State v. Dorton, 182 N.C. App. 34, 43, 641 S.E.2d 357,
363, disc. rev. denied, 361 N.C. 571, 651 S.E.2d 225 (2007) (Mem.) (“[T]he court did
not err by declining to formally find or act on defendant’s proposed mitigating factors,
regardless whether evidence of their existence was uncontradicted and manifestly
credible.”).
¶7 Although defendant may have presented sufficient evidence of mitigating
factors, the trial court, in its discretion, could refuse to mitigate the sentence.
Defendant presented sufficient evidence of mitigating factors 7 and 11 under Section
15A-1340.16(e), of which the State agreed. See N.C. Gen. Stat. § 15A-1340.16(e)
(2021). The trial court considered the evidence and the mitigating factors but, in its
STATE V. FREEMAN
2022-NCCOA-654
Opinion of the Court
discretion, chose to sentence defendant in the presumptive range. Defendant
received an active sentence for the first robbery count within the presumptive range
of 84 months minimum to 113 months maximum, and for his second conspiracy to
commit robbery count, a sentence within the presumptive range of 33 months
minimum to 52 months maximum. See N.C. Gen. Stat. § 15A-1340.17(c) (2021).
Because the trial court sentenced defendant within the presumptive range, as this
Court has stated many times, it was not required to find mitigating factors or
sentence defendant to a mitigated sentence. See State v. Ramirez, 156 N.C. App. 249,
258–59, 576 S.E.2d 714, 721 (2003) (“Since the court may, in its discretion, sentence
defendant within the presumptive range without making findings regarding proposed
mitigating factors, we hold the trial court did not err by sentencing defendant within
the presumptive range without making findings as to this mitigating factor.”); State
v. Taylor, 155 N.C. App. 251, 267, 574 S.E.2d 58, 69 (2002); State v. Campbell, 133
N.C. App. 531, 542, 515 S.E.2d 732, 739 (1999).
¶8 Accordingly, because defendant fails to show a meritorious claim or that the
result would probably be different, defendant does not meet the standard for granting
petition for writ of certiorari.
STATE V. FREEMAN
2022-NCCOA-654
Opinion of the Court
III.
¶9 Defendant’s petition for writ of certiorari on the sole issue of sentencing error
due to mitigating factors is denied with prejudice. For the foregoing reasons,
defendant’s petition for writ of certiorari is denied and his appeal is dismissed.
DISMISSED.
Judges DILLON and CARPENTER concur.